State v. James Timothy Genous

2021 WI 50

SUPREME COURT OF WISCONSIN
CASE NO.: 2019AP435-CR

COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent-Petitioner,
v.
James Timothy Genous,
Defendant-Appellant.

REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 392 Wis. 2d 382,944 N.W.2d 359
(2020 – unpublished)

OPINION FILED: June 4, 2021
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: March 3, 2021

SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Milwaukee
JUDGE: Dennis R. Cimpl

JUSTICES:
HAGEDORN, J., delivered the majority opinion of the Court, in
which ZIEGLER, C.J., ROGGENSACK, and REBECCA GRASSL BRADLEY,
JJ., joined. DALLET, J., filed a dissenting opinion, in which
ANN WALSH BRADLEY and KAROFSKY, JJ., joined.
NOT PARTICIPATING:

ATTORNEYS:

For the plaintiff-respondent-petitioner, there were briefs
filed by Scott E. Rosenow, assistant attorney general; with whom
on the brief was Joshua L. Kaul, attorney general. There was an
oral argument by Scott E. Rosenow.

For the defendant-appellant, there was a brief filed by Leon
W. Todd, assistant state public defender. There was an oral
argument by Christopher P. August.
 2021 WI 50

NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2019AP435-CR
(L.C. No. 2016CF3891)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

Plaintiff-Respondent-Petitioner, FILED
v. JUN 4, 2021
James Timothy Genous, Sheila T. Reiff
Clerk of Supreme Court
Defendant-Appellant.

HAGEDORN, J., delivered the majority opinion of the Court, in which
ZIEGLER, C.J., ROGGENSACK, and REBECCA GRASSL BRADLEY, JJ.,
joined. DALLET, J., filed a dissenting opinion, in which ANN WALSH
BRADLEY and KAROFSKY, JJ., joined.

REVIEW of a decision of the Court of Appeals. Reversed and

cause remanded.

¶1 BRIAN HAGEDORN, J. The question in this case is

whether a vehicle stop was supported by reasonable suspicion of

drug activity. Examining the totality of the circumstances, we

hold the stop was lawful and reverse the court of appeals.1

1See State v. Genous, No. 2019AP435-CR, unpublished slip op.
(Wis. Ct. App. Apr. 28, 2020).
 No. 2019AP435-CR

I. BACKGROUND

¶2 At 3:36 a.m. on August 28, 2016, James Genous sat in a

parked, running vehicle on a residential street in West Allis with

its headlights turned on. Genous momentarily turned off the

headlights, and a woman emerged from the house he was parked in

front of. She entered the vehicle through the front passenger

door and remained in the car for 10 to 15 seconds. The woman then

exited the vehicle and ran back into the house. A few seconds

later, the vehicle's headlights turned back on and the car pulled

away.

¶3 West Allis Patrol Officer Adam Stikl watched these

events from an unmarked squad car half a block away. Two weeks

prior, he received an intra-department email regarding K.S., a

resident of the single-family home Genous was parked in front of.

K.S. was a known heroin and narcotics user who previously worked

with the department. The email explained that the department was

no longer working with K.S. and that officers were to "keep an eye

on her because she does obviously still use." After receiving the
email, Officer Stikl looked up K.S.'s physical description on his

department's local system. As Officer Stikl watched the brief,

nighttime interaction when the events leading to this case took

place, he observed that the woman entering and exiting Genous' car

matched K.S.'s physical description. He also knew from

communications within his department that this area had a

reputation for high drug-trafficking activity.

¶4 Based on this context and his training, Officer Stikl
suspected he had witnessed a drug transaction. As Genous drove
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away, Officer Stikl followed him for about three blocks and

executed a traffic stop. During the stop, officers discovered a

handgun in Genous' vehicle. Genous was arrested and later charged

with unlawful possession of a firearm by a felon.

¶5 Genous filed a motion to suppress the firearm evidence

in part on the basis that Officer Stikl lacked reasonable suspicion

to stop Genous' vehicle. The circuit court2 denied the motion

following a hearing. The court of appeals reversed, and we granted

the State's petition for review.

II. DISCUSSION

¶6 The Fourth Amendment to the United States Constitution

provides: "The right of the people to be secure in their

persons . . . against unreasonable searches and seizures, shall

not be violated." Genous and the State agree that Officer Stikl

seized Genous by executing the traffic stop, but they disagree on

whether the stop complied with the Fourth Amendment.

¶7 An investigatory stop, also known as a Terry stop,
"usually involves only temporary questioning and thus constitutes

only a minor infringement on personal liberty." State v. Young,

2006 WI 98, ¶20, 294 Wis. 2d 1, 717 N.W.2d 729. It allows police

officers to briefly detain someone to "investigat[e] possible

criminal behavior even though there is no probable cause to make

an arrest." State v. Waldner, 206 Wis. 2d 51, 55, 556 N.W.2d 681

2 The Honorable Dennis R. Cimpl of the Milwaukee County
Circuit Court presided.

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 No. 2019AP435-CR

(1996). This type of limited stop complies with the Fourth

Amendment "if the police have reasonable suspicion that a crime

has been committed, is being committed, or is about to be

committed." Young, 294 Wis. 2d 1, ¶20.

¶8 Reasonable suspicion must be supported by specific and

articulable facts. Id., ¶21. While it is a low bar, a mere hunch

is insufficient. Id.; State v. Eason, 2001 WI 98, ¶19, 245

Wis. 2d 206, 629 N.W.2d 625. Yet "officers are not required to

rule out the possibility of innocent behavior before initiating a

brief stop." State v. Anderson, 155 Wis. 2d 77, 84, 454 N.W.2d 763

(1990). The question is, "What would a reasonable police officer

reasonably suspect in light of his or her training and experience?"

Id. at 83-84; United States v. Cortez, 449 U.S. 411, 418 (1981)

("[A] trained officer draws inferences and makes

deductions . . . that might well elude an untrained person.").

¶9 A reasonable suspicion determination is based on the

totality of the circumstances. State v. Post, 2007 WI 60, ¶18,

301 Wis. 2d 1, 733 N.W.2d 634. We focus not on isolated,
independent facts, but on "the whole picture" viewed together.

Cortez, 449 U.S. at 417-18; see also United States v. Sokolow, 490

U.S. 1, 9-10 (1989) ("Indeed, Terry itself involved a series of

acts, each of them perhaps innocent if viewed separately, but which

taken together warranted further investigation." (internal

quotation marks omitted)).

¶10 Therefore, our task is to consider everything observed

by and known to the officer, and then determine whether a
reasonable officer in that situation would reasonably suspect that
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 No. 2019AP435-CR

criminal activity was afoot. Whether reasonable suspicion was

present is a legal question we analyze independently, but we accept

the circuit court's findings of historical fact unless they are

clearly erroneous. Post, 301 Wis. 2d 1, ¶8.

¶11 In this case, Officer Stikl suspected that the

interaction he witnessed in Genous' car was a drug deal. The facts

show that his suspicion was objectively reasonable. Informed by

his training, experience, and department communications, Officer

Stikl could reasonably infer quite a bit about the events he

observed that night. He knew that drug transactions often occur

during brief exchanges in vehicles, which was consistent with the

10-15 second contact in Genous' car.3 He also knew that a brief

meeting in a vehicle at 3:36 a.m., immediately after the vehicle's

headlights are turned off, and in an area with a reputation for

drug-trafficking, are potential indicators of illegal activity.4

3 Officer Stikl testified that based on his training and
experience, "a lot of these drug cars will come into our city,
park in front of a house where they are going to sell their drugs
to, make the deal inside their vehicle in front of the house and
then leave."
4 Genous disputed the strength of the evidentiary basis
offered by Officer Stikl in support of the assertion that this was
an area with high drug-trafficking activity. Genous asks us to
employ our supervisory authority to create evidentiary
prerequisites for circuit courts considering this factor.

5
 No. 2019AP435-CR

And perhaps most significantly, Officer Stikl had good reason to

believe that the woman Genous met in his vehicle was a known drug

user with whom his department had a documented history. All these

factors, viewed collectively in the eye of a trained and

experienced law enforcement officer, support the conclusion that

Officer Stikl reasonably suspected a drug transaction had

occurred.

¶12 Genous contests this conclusion largely by isolating

various factors, attacking them one by one, and then excluding

each factor from the totality-of-the-circumstances analysis. We

reject "this sort of divide-and-conquer analysis." United States

v. Arvizu, 534 U.S. 266, 274 (2002). It is true that a citizen

visiting a vehicle at night does not automatically constitute

grounds for law enforcement to intervene, nor do officers have a

green light to detain and question anyone who has a short

conversation with a known drug user.5 But the reasonable suspicion

"Our supervisory authority is not to be invoked lightly," and
we decline to do so here. Koschkee v. Evers, 2018 WI 82, ¶12, 382
Wis. 2d 666, 913 N.W.2d 878. Although its weight will vary from
case to case, it is well-settled that an area's reputation for
criminal activity is one of many relevant considerations in a
reasonable suspicion inquiry. Illinois v. Wardlow, 528 U.S. 119,
124 (2000); State v. Morgan, 197 Wis. 2d 200, 210-13, 539
N.W.2d 887 (1995). Like other factual matters in a totality-of-
the-circumstances analysis, an area's reputation for criminal
activity is properly entrusted to circuit courts in the first
instance, and challengeable on appeal as clearly erroneous. See
State v. Post, 2007 WI 60, ¶8, 301 Wis. 2d 1, 733 N.W.2d 634. That
has long been the law, and we see no need to depart from it now.
5 See State v. Young, 212 Wis. 2d 417, 429-32, 569 N.W.2d 84
(Ct. App. 1997).

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 No. 2019AP435-CR

test is not an exercise in evaluating individual details in

isolation. It is the whole picture, evaluated together, that

serves as the proper analytical framework. See Sokolow, 490

U.S. at 9 ("Any one of these factors is not by itself proof of any

illegal conduct . . . . But we think taken together they amount

to reasonable suspicion.").

¶13 Considering the totality of the circumstances, we hold

that a reasonable law enforcement officer knowing what Officer

Stikl knew and seeing what he saw would reasonably suspect that

the short-term contact he witnessed in Genous' car was a drug

transaction. His investigatory stop of Genous' vehicle therefore

complied with the Fourth Amendment. We reverse the court of

appeals' conclusion to the contrary and remand to the court of

appeals to address Genous' additional arguments not presented to

this court.6

By the Court.——The decision of the court of appeals is

reversed, and the cause is remanded to the court of appeals.

6 Before the court of appeals, Genous argued that officers
unlawfully searched his car as well as his shoes and socks. The
court of appeals did not reach these issues because it concluded
that the initial stop was unlawful. Neither party asked us to
consider these questions, nor were they briefed. Therefore, it is
proper to remand these questions to the court of appeals.

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 No. 2019AP435-CR.rfd

¶14 REBECCA FRANK DALLET, J. (dissenting). The record

contains insufficient particular facts, as opposed to generalized

suspicions and hunches, that Genous had committed or was about to

commit a crime. It appears that Genous's presence in an alleged

"high-drug-trafficking area" played a disproportionate role in the

circuit court's reasonable-suspicion analysis, coloring those

general hunches as concrete suspicions. Allowing that designation

to so heavily influence the analysis——particularly when it is

unsupported by any empirical evidence——continues a troubling

erosion of the Fourth Amendment's particularized-suspicion

requirement. I therefore respectfully dissent.

I

¶15 An officer may conduct an investigatory traffic stop,

akin to a Terry stop,1 only if the officer has a "reasonable,

articulable suspicion that criminal activity is afoot." Illinois

v. Wardlow, 528 U.S. 119, 123 (2000); State v. Post, 2007 WI 60,

¶¶10-12, 301 Wis. 2d 1, 733 N.W.2d 634. An officer must be able

to point to concrete, particularized facts that warrant suspicion

of a particular defendant; "inchoate and unparticularized

suspicion[s] or 'hunch[es]'" are insufficient. Wardlow, 528 U.S.

at 123-24 (quoting Terry v. Ohio, 392 U.S. 1, 30 (1968)); Post,

301 Wis. 2d 1, ¶10.

¶16 The circuit court here found the following facts:

 Genous was in a "high-drug-trafficking area"

at 3:30am;

1 Terry v. Ohio, 392 U.S. 1 (1968).

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 No. 2019AP435-CR.rfd

 after idling for some unknown period of time,

Genous turned off his car along with the car's

headlights;

 Genous had "short-term contact" with a female

in front of her house; and

 a female who is a "known drug user" lived in

that house.2

As the court of appeals correctly concluded, these facts are not

"particularized" to Genous. State v. Genous, No. 2019AP435-CR,

unpublished slip op., ¶15 (Wis. Ct. App. Apr. 28, 2020) (quoting

State v. Young, 212 Wis. 2d 417, 433, 569 N.W.2d 84 (Ct.

App. 1997)). Rather, they describe the conduct of "large numbers

of law-abiding citizens in a residential neighborhood, even [one]

that has a high incidence of drug trafficking." See Young, 212

Wis. 2d at 430.

¶17 Likewise, the majority opinion's analysis identifies no

fact particular to Genous to give Officer Stikl reasonable

suspicion that Genous was engaged in criminal activity. Rather,

it asserts that a collection of generic facts, including that

Genous was present in what Officer Stikl called a "high-drug-

trafficking area," makes it reasonable for Officer Stikl to infer

that Genous was trafficking drugs.

Officer Stikl also noted that a contributing factor for why
2

he stopped Genous was that Genous's car was registered in "another
city." The majority opinion wisely omits this fact from its
analysis since the "other city" in which Genous's car was
registered was Milwaukee, mere blocks from where Genous was stopped
in West Allis.

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 No. 2019AP435-CR.rfd

¶18 The record evidence, however, undermines that

conclusion. Regarding the generic fact that "drug transactions

often occur during brief exchanges in vehicles," Officer Stikl

testified that neither he nor the West Allis Police Department had

any information that Genous's car was "used to transport drugs,"

"used by a known drug dealer," or connected to a known drug user.

As for this alleged "exchange," Officer Stikl testified that he

could not "see what was going on inside" Genous's car. He

testified that he saw no "physical contact" of any kind between

Genous and the woman who got into his car, let alone an "exchange"

that would resemble a drug transaction. Officer Stikl stated that

he did not see the woman carrying anything on her way to or from

Genous's car. He further admitted that drug transactions do not

occur only at certain hours. See State v. Betow, 226 Wis. 2d 90,

96, 593 N.W.2d 499 (Ct. App. 1999) (noting the absence of case-

law support for the proposition that drugs are more likely to be

trafficked by car at night than at any other time of day).

¶19 Even Officer Stikl's "identification" of the woman as

K.S., a "known drug user," is more generic than particular to

Genous. Officer Stikl testified that, prior to this night, he had

had no prior personal contact with K.S.——he had not even seen her

picture. He testified that he "recognized" the woman as K.S. based

on her "physicals" and that her address matched the house in front

of which Genous had parked. It is unclear what Officer Stikl meant

by "physicals," but the only specific identifying information he

testified to was that K.S. was a "white female." He also testified
that he did not know whether K.S. was the only white female who

3
 No. 2019AP435-CR.rfd

lived in her house. And so the only "particular" fact on which

Officer Stikl relied——that the woman who got into Genous's car was

a drug user——was not a fact at all; it was just a hunch.3 Thus,

none of the individual facts reveals anything particular to Genous

that gives rise to reasonable suspicion.

¶20 Even assessed collectively, these facts reveal nothing

concrete and articulable suggesting that Genous engaged in

criminal behavior. See United States v. See, 574 F.3d 309, 313-14

(6th Cir. 2009) (holding that "contextual factors" alone, without

particularized behavior, are insufficient to warrant reasonable

suspicion); State v. Evans, No. 2020AP286-CR, unpublished slip

op., ¶¶39-47 (Wis. Ct. App. Jan. 28, 2021) (concluding there was

no reasonable suspicion because the generic evidence regarding

drug transactions did "not show that the officer observed [this

defendant] exhibiting conduct consistent with drug cases"). The

Fourth Amendment does not give the police "free license to

stop . . . anyone" who shows up at the house of a person who

previously used drugs. United States v. James, 62 F. Supp. 3d 605,

610-14 (E.D. Mich. 2014); see also United States v. Black, 707

F.3d 531, 542 (4th Cir. 2013) (holding that defendant's presence

at night in "high-crime area" with a convicted criminal

insufficient for reasonable suspicion); State v. Weyand, 399

P.3d 530, 535 (Wash. 2017) (holding that "merely visiting" a house

known to police "because of the residents' histories of drug

3 The record contains no information suggesting that the
police ever learned exactly who got into Genous's car. Officer
Stikl testified that neither he nor, as far as he knew, any other
officer followed up with K.S.

4
 No. 2019AP435-CR.rfd

possession and use, not for a history of selling or distributing"

did not amount to reasonable suspicion). The Fourth Amendment

requires particularized suspicion and we have none here.

II

¶21 Genous's case illustrates two problems with the label

"high-crime area." First, the label can cloak general hunches as

particularized suspicion. In this way, a location's

characteristics may play a disproportionate role in a reasonable-

suspicion analysis, thus running afoul of Wardlow. See Wardlow,

528 U.S. at 124 (holding that a location's characteristics, while

relevant, cannot be determinative). And second, it is unclear

what the term "high-crime area" actually means, making it difficult

for circuit courts to know how much weight to give a location's

characteristics in any particular analysis. We should therefore

adopt objective criteria for evaluating an assertion that an area

is high in crime.

¶22 Both problems were on display here. The only evidence

in the record that this area of West Allis was a high-drug-

trafficking area is Officer Stikl's testimony that there had been

a single recent incident of "drug activity" two blocks south and

five blocks west of where he stopped Genous.4 One incident of an

unknown nature occurring roughly half a mile away hardly qualifies

this area as a high-drug-trafficking area. Yet that may be all it

4 Officer Stikl testified that this other incident was
included in his arrest report, but that report is not in the
record. His testimony also alludes to "assemblies" and "briefings"
identifying this area of West Allis as a high-drug-trafficking
area. The details of those briefings, including dates, however,
are also not in the record.

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took to cast Genous' conduct as suspicious. And, as discussed

above, nothing about Genous' conduct alone was reasonably

suspicious. Genous briefly met in his car with a woman who may

have been a drug user, in front of that woman's house. The police

saw nothing that resembled an exchange and they had no information

that Genous or Genous's car had been involved in any drug

transaction. Thus, the record evidence suggests that Genous's

location was more than just a "relevant" factor for whether his

behavior was suspicious; it was determinative.

¶23 It is of little help, however, to just say that the

circuit court may have given too much weight to Genous's location

or that his location was improperly labeled. After all, under

Wardlow, a person's location may be relevant to a reasonable-

suspicion analysis. But for courts to know exactly how a person's

location is relevant in a particular case, they must consider how

that location is defined, especially when considering a vague term

such as "high-crime area." What is the "area" the court is

considering? Is it five blocks? Ten? As for what it means to be

"high crime," how many incidents of crime were there and how

recently did those incidents take place? See State v. Fisher,

2006 WI 44, ¶41, 290 Wis. 2d 121, 714 N.W.2d 495 (reasoning that

a neighborhood could not "realistically be considered" a high-

crime area because its crime rate was equal to other areas;

characterizing it as such an area "would erase any meaningful

distinction between a truly high-crime area and any other area").

Without a generally accepted understanding of what "high-crime
area" means, its definition (and its boundaries) will shift from

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court to court. See Andrew G. Ferguson, Crime Mapping and the

Fourth Amendment, 63 Hastings L.J. 179, 203-05 (2011). Such a

fluid concept injects ambiguity into an inquiry that "looks for

the exact opposite"; what is needed for reasonable suspicion is

"objective and particularized indicia of criminal activity." See

United States v. Beauchamp, 659 F.3d 560, 571 (6th Cir. 2011).

¶15 It is therefore important for circuit courts to

critically assess claims that a particular area is high in crime

so as not to give that label undue weight in a reasonable-suspicion

analysis. To that end, some courts and commentators have

established or proposed criteria for assessing whether an area

qualifies as a high-crime area. The First Circuit Court of Appeals

has established a three-factor test for analyzing whether a trial

court's high-crime-area finding is clearly erroneous. See United

States v. Wright, 485 F.3d 45, 53-54 (1st Cir. 2007). First, there

must be some "nexus" between the type of crime at issue in a

particular case and the type of crime that forms the basis for the

high-crime designation. Id.; see also United States v. Tinnie,

629 F.3d 749, 758 (7th Cir. 2011) (Hamilton, J., dissenting)

(explaining that courts must find a "reasonable connection between

the neighborhood's higher crime rate and the facts relied upon" to

justify the stop). For example, a Terry stop based on a suspected

drug transaction in an area with a high number of arrests for drug

transactions. Wright, 485 F.3d at 53-54. Second, the area must

be defined by "limited geographic boundaries." Id. General claims

that an entire city is a high-crime area are insufficient. And
third, the stop in question must be close in time to reports of

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 No. 2019AP435-CR.rfd

heightened criminal activity in that area, preventing an area from

being perpetually designated "high crime" without continuing

evidence. Id. The First Circuit allows evidence on these factors

to include "a mix of objective data and the testimony of police

officers," and it leaves open the possibility that other factors

may be relevant in certain cases. See id. (noting that these

factors will be relevant in "most cases"); see also United States

v. Gorham, 317 F. Supp. 3d 459, 464-65 (D.D.C. 2018) (applying a

similar test).

¶16 Some commentators have proposed a test that closely

tracks the First Circuit's. See Andrew G. Ferguson & Damien

Bernache, The "High-Crime Area" Question, 57 Am. U. L.R. 1587,

1628-40 (2008). Ferguson and Bernache's framework also includes

three factors——nexus, geography, and timing——but they give

empirical data a larger role in the analysis. Even if an officer

geographically defines a high-crime area, they argue that courts

should not accept that claim without objective, statistical

evidence to support it. See id. at 1629-30. Requiring such

evidence is "in line with Terry" in that a judge can meaningfully

evaluate reasonable suspicion only if such claims are subjected to

"detached, neutral scrutiny." Id. at 1630 (quoting Terry, 392

U.S. at 21). Whatever the criteria, this court should develop an

objective test under which circuit courts can evaluate testimony

that a particular place is a high-crime area. At the very least,

circuit courts should not give determinative weight to unverified

assertions that an area is high in crime when evaluating whether
the totality of the circumstances evinces reasonable suspicion.

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See e.g., People v. Harris, 957 N.E.2d 930, ¶¶13-15 (Ill. App.

Ct. 2011) (holding that unsupported statements without further

inquiry are "insufficient" to warrant "consideration for purposes

of justifying a Terry stop"); State v. Morgan, 197 Wis. 2d

200, 218-19, 539 N.W.2d 887 (1995) (Abrahamson, J., dissenting)

(rejecting as irrelevant an officer's claim that an area was high

in crime because the officer failed to justify that claim).

III

¶24 It is often difficult to assess the impact of this

court's decisions at the time they are made. Cases like this one

often seem small in the law-developing context, just another fact-

based decision. But the Fourth Amendment's protections are eroded

"not in dramatic leaps but in small steps, in decisions that seem

'fact-bound,' case-specific, and almost routine." Tinnie, 629

F.3d at 754 (Hamilton, J., dissenting). Accepting without

scrutinizing a claim that an area is a "high-crime area"

unwittingly makes all residents and visitors in such areas more

susceptible to searches and searches, thereby treating them as

though they are "less worthy of Fourth Amendment protection."

United States v. Curry, 965 F.3d 313, 331 (4th Cir. 2020). We

must guard against such unequal treatment and ensure that the

Fourth Amendment offers the same protection to everyone, no matter

their location. See Utah v. Strieff, 579 U.S. ___, 136

S. Ct. 2056, 2069-70 (2016) (Sotomayor, J., dissenting).

¶25 Because there is no reasonable, particularized suspicion

that Genous was committing a crime, and because an unsupported
claim that Genous was in a "high-drug-trafficking area" played a

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disproportionate role in the circuit court's reasonable-suspicion

analysis, I respectfully dissent.

¶26 I am authorized to state that Justices ANN WALSH BRADLEY

and JILL J. KAROFSKY join this dissent.

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1